HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

[2005] UKHL 46

LORD BINGHAM OF CORNHILL

My Lords,

1. Before the House are an appeal and a cross-appeal. Both raise questions as to the procedure adopted in revoking a declaration previously made in favour of Mr McClean as a life-sentence prisoner under the Northern Ireland (Sentences) Act 1998. They are important questions, bearing on the freedom of the prisoner and the safety of the community in Northern Ireland.

The legislation

2. The Belfast (or Good Friday) Agreement reached at multi-party talks on Northern Ireland and signed on 10 April 1998 (Cm 3883) had as its political objective to break the cycle of political and sectarian violence which had disfigured the life of the province over a number of years. To that end the Governments of the United Kingdom and Ireland agreed, among other things, to put in place mechanisms for an accelerated programme for the release of prisoners convicted of offences scheduled under the Northern Ireland (Emergency Provisions) Acts 1973, 1978, 1991 or 1996 as, very broadly, offences motivated by political or sectarian considerations. But prisoners affiliated to organisations which had not established or were not maintaining a complete and unequivocal ceasefire were not to benefit from the accelerated release arrangements. The situation in this regard was to be kept under review. Both Governments agreed to complete a review process within a fixed time frame and to set prospective release dates for all prisoners qualifying for release. The review process would provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences for which the prisoners had been convicted and the need to protect the community. It was the parties' intention that, should the circumstances allow it, any qualifying prisoners who remained in custody two years after the commencement of the scheme should be released at that point. Both Governments would seek to enact appropriate legislation to give effect to these arrangements by the end of June 1998. It seems plain that the intention was to promote reconciliation by early release of prisoners who had committed offences motivated by political or sectarian considerations but who were now willing to renounce violence.

3. Her Majesty's Government honoured its legislative undertaking by introducing what became the Northern Ireland (Sentences) Act 1998, which received the royal assent on 28 July 1998 and was brought into force on the same day. The key feature in the enacted scheme, provided for in section 3(1), is a declaration that a prisoner is eligible for release in accordance with the provisions of the Act. Such a declaration may be made in respect of a prisoner serving a life sentence or a determinate sentence of at least five years, but for present purposes no account need be taken of the latter. In the case of a life sentence prisoner a declaration may be made only if four conditions are satisfied. The first is that the sentence should have been passed in Northern Ireland for an offence committed before 10 April 1998 (the date of the Belfast Agreement), that the offence when committed should have been scheduled under one of the Emergency Provisions Acts already mentioned and that the offence in question should not have been, in effect, excluded from the relevant schedule by certificate of the Attorney General: that, in summary, is the effect of section 3(3) and (7). The second condition is that the prisoner should not be a supporter of an organisation specified by order of the Secretary of State as concerned in terrorism connected with the affairs of Northern Ireland, or promoting or encouraging it, and which has not established or is not maintaining a complete and unequivocal ceasefire: that is the effect of section 3(4) and (8). The third condition, closely linked with the second, is that if the prisoner were released immediately he would not be likely to become a supporter of a specified organisation or to become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland: section 3(5). The fourth condition, mostly directly in issue in this case and applicable only to life sentence prisoners, is that if the prisoner were released immediately he would not be a danger to the public: section 3(6).

4. A declaration under section 3 in the case of a life sentence prisoner must, by section 6 of the Act, specify a day which is believed to mark the completion of about two thirds of the period which the prisoner would have been likely to spend in prison under the sentence. The prisoner is then entitled to be released on licence, subject to conditions, on or about the date so specified or the date of the declaration, whichever is earlier: section 6(2) and (3), section 4(3) and section 9. But section 10 introduces a very important feature of the Act and of the present case: "the accelerated release day". Where, as in the present case, a sentence was passed after the date on which the Act came into force (28 July 1998) and is to be treated under section 26 of the Treatment of Offenders Act (Northern Ireland) 1968 as reduced by a period of custody beginning before 28 July 1998, the accelerated release day is the second anniversary of that date, 28 July 2000: section 10(5). The prisoner has "a right to be released" on the accelerated release day: section 10(2).

5. The administration of this important and, in a literal sense, extraordinary scheme is entrusted to a body of Sentence Review Commissioners to be appointed by the Secretary of State under section 1 of the Act, chosen (section 1(3)) as commanding widespread acceptance throughout the community in Northern Ireland and including among their number, so far as practicable, members with psychiatric or psychological as well as legal experience (section 1(2)). It is to them that a prisoner may apply under section 3 for a declaration of eligibility for release, and section 3(2) provides that, in the case of a life sentence prisoner, the Commissioners "shall grant the application if (and only if)" the four conditions noted in paragraph 3 above "are satisfied". It is the Commissioners who, in granting a declaration to a life prisoner, must specify (under section 6(1)) the day which "they believe" marks the completion of about two thirds of the period which the prisoner would ordinarily have been likely to serve. By contrast, the operation of the accelerated release provisions in section 10 takes effect automatically and calls for no further declaration or action by the Commissioners.

6. The Secretary of State's duty to appoint the Commissioners has already been noted, and he has an important power to make rules governing the Commissioners' procedure under Schedule 2 to the Act, referred to below. He also has power, under section 9(2), to suspend a licence on which a life sentence prisoner has been or is to be released under section 6 "if he believes the person concerned has broken or is likely to break" a condition of his licence. The consequence (section 9(3)) is that the person shall be detained in pursuance of his sentence, or be deemed unlawfully at large, and the Commissioners must consider his case. On considering the case the Commissioners must confirm the licence if they think the person has not broken and is not likely to break a licence condition, but otherwise they must revoke the licence: section 9(4). On confirmation, the person's right to be released in effect revives, and if he is at large he has (so far as the relevant sentence is concerned) a right to remain at large: section 9(5).

7. It is section 8 which lies at the heart of this appeal. Section 8(1) requires the Secretary of State to apply ("shall apply") to the Commissioners to revoke a declaration under section 3(1) if, at any time before a prisoner is released under section 6, the Secretary of State believes

"(a) that as a result of an order under section 3(8) [specifying an organisation as promoting terrorism or not observing a complete ceasefire], or a change in the prisoner's circumstances, an applicable condition in section 3 is not satisfied, or

(b) that evidence or information which was not available to the Commissioners when they granted the declaration suggests that an applicable condition in section 3 is not satisfied."

Section 8(2) imposes an exactly corresponding duty on the Commissioners, who are required to grant an application under this section "if (and only if) the prisoner has not been released under section 6" and they share the Secretary of State's belief as to (a) or (b). Section 11(3) of the Act requires the Commissioners, if they revoke a declaration under section 8, to give notice of the revocation and the reasons for it to the prisoner and to the Secretary of State.

The facts

8. On the evening of 3 March 1998 (just over a month before the Belfast Agreement) there were eight customers in the public bar of the Railway Bar, Poyntzpass, County Down, when two masked gunmen burst in and ordered those present to lie down, which they did. When the occupants were in a position of complete vulnerability the gunmen opened fire, intending (on the finding of Kerr J, the trial judge) to kill as many people as possible, irrespective of their age or gender. The interior of the bar was sprayed with bullets. It seems that the gunmen mistakenly believed that all the customers were Catholic. Two of those present sustained fatal injuries. Two more sustained serious injuries but survived.

9. The respondent, Mr McClean, was arrested on 12 March 1998, charged and tried on an indictment containing two counts of murder, two counts of attempted murder and one count of possessing a firearm and ammunition with intent to endanger life, all based on this incident at Poyntzpass. For reasons given in a judgment delivered on 2 February 2000 Kerr J convicted Mr McClean on all five counts. The judge was satisfied that he was either one of the masked gunmen or actively assisted the gunmen in their murderous enterprise in full knowledge of their intent. Passing sentence of life imprisonment for each of the murders and concurrent sentences of 20 years' imprisonment for each of the attempted murders and 15 years' for the firearms offence, the judge said that these crimes would "live in infamy as being among the most heinous offences in the history of Northern Ireland".

10. On 3 February 2000, the day following these convictions, Mr McClean applied to the Commissioners under section 3 of the Act for a declaration that he was eligible for release in accordance with the provisions of the Act. The Secretary of State, as required by the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998 (SI 1998/1859) made by her under Schedule 2 to the Act on 30 July 1998, served a response comprising information and documents prescribed by the Rules. The Commissioners were then required by the Rules, on consideration of the papers alone, to give a preliminary indication whether they were provisionally minded to grant or refuse the application. On 14 April 2000 the Commissioners gave a preliminary indication that they were minded to grant the application. It was open to the Secretary of State under the Rules to challenge this preliminary indication, but on 28 April 2000 he gave notice that he did not wish to do so. On receipt of this notice the Commissioners were obliged under the Rules to make the substantive determination they were minded to make when they gave the preliminary indication. This the Commissioners did on 2 May 2000, specifying 12 November 2008 as the day marking completion of the two thirds period specified in section 6(1) of the Act. Since Mr McClean fell within section 10(5) of the Act, he became entitled to accelerated release on 28 July 2000, the second anniversary of the coming into force of the Act.

11. On 5 July 2000, while on pre-release home leave from prison, Mr McClean became involved in an incident at Banbridge, County Down, which culminated in serious injury to a man named Keith Butler. Mr McClean was arrested and charged with attempted murder and causing grievous bodily harm with intent to do so. The incident arose from the removal by a loyalist faction of flags displayed by another loyalist faction, the Ulster Volunteer Force (the UVF), as part of a struggle for local dominance between the two factions.

12. On 10 July 2000 the Secretary of State applied to the Commissioners in writing under section 8 of the Act to revoke the declaration of eligibility granted to Mr McClean under section 3. The Secretary of State, it was said,

"believes that as a result of a change in Mr McClean's circumstances that evidence or other information which was not available to the Commissioners when they granted that declaration suggests that an applicable condition under section 3 of the 1998 Act is not satisfied".

The condition referred to was the fourth statutory condition, that if the prisoner were released immediately he would not be a danger to the public. The evidence or information said to have been unavailable to the Commissioners when they granted their declaration was Mr McClean's appearance in court charged with attempted murder, and his remand in custody, very shortly after he had been granted pre-release home leave. On 26 July 2000 section 10(7) of the Act was amended to provide that a prisoner should not be released following a declaration under section 3(1) at any time when an application for revocation under section 8(1) had yet to be finally determined: the Northern Ireland (Sentences) Act 1998 (Amendment of Section 10) Order 2000 (SI 2000/2024). On the same date the Commissioners gave a preliminary indication in writing that they were minded to grant the Secretary of State's application to revoke. As required by the Rules the Commissioners gave reasons:

"The Commissioners believe that the information now available suggests that the qualifying condition in section 3(6) [the fourth, danger to the public, condition] is not satisfied for the following reasons:

(1) [Mr McClean] has been charged with an offence of grave violence.

(2) The alleged offence occurred very shortly after [Mr McClean] was released on pre-release home leave.

(3) While noting [Mr McClean's] claim that the incident leading to the charge involved self-defence, the Commissioners also note that a High Court application for bail was refused on 21 July 2000".

Mr McClean gave notice on 4 August 2000, as he was entitled to do under the Rules, that he wished to challenge this preliminary indication.

13. There was some delay in bringing Mr McClean to trial on the Banbridge indictment and meanwhile the substantive determination of the Secretary of State's section 8 application was adjourned from time to time. On 27 November 2001 Mr McClean was acquitted of causing grievous bodily harm with intent by Girvan J, who had already ruled that he had no case to answer on the charge of attempted murder. The judge did not find it proved that Mr McClean had been involved in the assault on Mr Butler as part of a joint enterprise as alleged by the Crown. He found that Mr McClean had been very much more involved in the whole business of flag removal than he admitted, and was satisfied that Mr McClean had been an active participant in the removal of UVF flags which Mr Butler had gone to the scene to protect, but active participation in flag removal did not prove participation in the assault. The Secretary of State had meanwhile, on 12 October 2001, added the Loyalist Volunteer Force (the LVF) to the list of organisations specified under section 3(8) of the Act. Earlier, the LVF had been specified in July 1998 but omitted from the order made in November 1998. On 5 November and again on 3 December 2001 notice was given to Mr McClean that the Secretary of State would seek to support his section 8 application on the additional ground that Mr McClean was believed to have supported, and to support, a specified organisation, namely the LVF.

14. The substantive hearing of the Secretary of State's revocation application was fixed to take place on 17 January 2002. In anticipation of that hearing the Secretary of State on 21 December 2001 gave notice of application under the Rules to adduce further evidence. Some of that further evidence (such as Mr McClean's prison record and the judgment of Girvan J) was unremarkable. But he also sought to rely on an intelligence summary which was secret, and which calls for further explanation.

15. Under powers conferred in Schedule 2 to the 1998 Act the Secretary of State was authorised to make procedural rules which might, among other things, provide for evidence or information about a prisoner not to be disclosed to anyone other than a Commissioner if the Secretary of State certified that the evidence or information satisfied conditions specified in the Rules (para 5(e)), for the holding of proceedings in specified circumstances in the absence of any person, including the prisoner concerned and any representative appointed by him (para 7(1)) and for the appointment by the Attorney General for Northern Ireland of a person to represent the prisoner's interest in the proceedings when he and his representative were excluded from the proceedings (para 7(2)).

16. In the Rules made and laid before Parliament on 30 July 1998 these powers were exercised. It is unnecessary to recite all the detailed provision of the Rules, which expand but closely follow the provisions of Schedule 2. Rule 22 is, however, significant, and provides:

"22.?(1) This rule applies where the Secretary of State certifies as 'damaging information' any information, document or evidence which, in his opinion, would if disclosed to the person concerned or any other person be likely to:

(a) adversely affect the health, welfare or safety of the person concerned or any other person;

(b) result in the commission of an offence;

(c) facilitate an escape from lawful custody or the doing of any act prejudicial to the safe keeping of persons in such custody;

(d) impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders;

(e) be contrary to the interests of national security; or

(f) otherwise cause substantial harm to the public interest;

and any such information, document or evidence is referred to in these Rules as 'damaging information'.

(2) The Commissioners shall not in any circumstances disclose to or serve on the person concerned, his representative or any witness appearing for him any damaging information and shall not allow the person concerned, his representative or any witness appearing for him to hear argument or the examination of evidence which relates to any damaging information.

(3) Where the Secretary of State has certified information as damaging he shall within seven days of doing so serve on the person concerned and on the Commissioners, whether by way of inclusion with the application or response papers or otherwise, written notice of this stating, so far as he considers it possible to do so without causing damage of the kind referred to in paragraph (1), the gist of the information he has thus withheld and his reasons."

17. The notice given by the Secretary of State on 21 December (see para 14 above) was given pursuant to his duty under rule 22(3). In pursuance of that duty also the Secretary of State notified Mr McClean of the gist of the information withheld and the reasons for withholding it, in these terms:

"1. The withheld information relates to intelligence to the effect that if you were released immediately you would be a danger to the public. In particular that you have been involved in paramilitary activities on behalf of the Loyalist Volunteer Force (LVF) both before committal to prison in 1998 and in the period since; that you have sought to retain an involvement in the affairs of the group; and that you will become re-involved in LVF activity upon release from prison.

2. I am withholding the information for the reasons that disclosure would be likely to?

(a) adversely affect the health, welfare or safety of other persons, namely, the sources of the information drawn upon in order to compile the intelligence summary;

(b) result in the commission of offences, namely, offences against the sources of the information referred to at (a) above, their families and property;

(c) impede the prevention or detection of offences or the apprehension or prosecution of suspected offenders; and

(d) be contrary to the interests of national security."

Mr McClean challenged the Secretary of State's application to rely on the secret intelligence summary, but the application was allowed by a single Commissioner and on appeal by a panel of Commissioners. On 14 January 2002 the Commissioners applied to the Attorney General for appointment of a special advocate to represent the interests of Mr McClean when he and his legal representative were excluded from the hearing pursuant to paragraph 7(2) of Schedule 2 to the Act and rule 19(8) of the Rules, and on 22 January 2002 Mr John Orr QC was appointed to fulfil that role.

18. The substantive hearing to determine the Secretary of State's section 8 application took place on 19 March. For reasons given in writing on 23 April 2002 the Commissioners granted the application and revoked the declaration made in favour of Mr McClean under section 3. With reference to that declaration the Commissioners said:

"When the respondent's application for early release was considered by the Commissioners at the time of making the preliminary indication, the Commissioners had cause for concern due to the brutality of the index offence, the fact that the offence had been committed shortly before the signing of the Good Friday Agreement and the short time the prisoner had served prior to applying for early release.

In the circumstances it was difficult for the Commissioners to say confidently that, if released immediately, the prisoner would not be a danger to the public. Nevertheless, since the Secretary of State did not oppose the respondent's application for early release and submitted no evidence to substantiate the Commissioners' concerns about the issue of danger to society, the Commissioners issued a preliminary indication in favour of early release, which was not opposed by the Secretary of State."

The Commissioners then continued:

"The single issue which now has to be determined by the Commissioners is whether, in the light of new information not available when the Commissioners granted the declaration for early release in terms of section 3 of the Act, the Commissioners are still able to say that if the prisoner were released immediately, he would not be a danger to the public.

The applicant called two witnesses at the hearing, Detective Chief Superintendent W Lamont and Detective Sergeant R Herron. Documentary evidence was also placed before the Commissioners by the applicant.

The respondent testified on his own behalf.

Mr Lamont was called as a witness to substantiate certain damaging information. By the nature of this evidence, due to statutory provisions the hearing had to proceed in the absence of both the respondent and his legal representative. During this closed session the respondent was represented by Mr J Orr, Special Advocate appointed by the Attorney General for Northern Ireland.

In making a decision in this application the Commissioners have taken no account whatsoever of the damaging information evidence submitted by the applicant, because it was not necessary to do so to reach a decision in this case.

The Commissioners' decision is based entirely on the respondent's oral evidence at the revocation hearing and the written Judgement of Mr Justice Girvan in the matter of The Queen v Stephen McClean, Noel William McCready and Philip Robert George Harrison, dated November 27, 2001".

19. The Commissioners gave seven reasons for their decision to revoke, which were these:

"1. The original decision of the Commissioners that the respondent met the criteria for release was finely balanced. Since this is a revocation hearing in relation to an already granted licence, the Commissioners must have reference to the index offence. The Commissioners were concerned about the nature of the index offence, and its proximity in time to the application for release. There had been very little time for evidence to emerge that the respondent would not be a danger to the public. Essentially, the Commissioners had to base their decision on the information then before them, and granted the application because the Secretary of State raised no objection to early release.

2. In order to revoke the release decision, the Commissioners must be persuaded that in the light of changed circumstances, new evidence or information, an applicable condition in section 3 of the Act is no longer satisfied. In this particular instance, are the Commissioners still able to say that if released immediately, the respondent would not be a danger to the public?

3. In the criminal proceedings dealing with the incident which gave rise to this application, although the respondent was found not guilty of attempted murder or causing grievous bodily harm with intent and was acquitted on both counts, Mr Justice Girvan accepted the thrust of the Crown case that the respondent was much more involved in the whole business of flag removal than he admitted. However, in the words of the Judge, being an active participant in the flag removal does not of itself prove that the respondent participated in the assault.

4. Notwithstanding the acquittal of the respondent, the outcome of the criminal proceedings, particularly in relation to the Judge's comments regarding the involvement of the respondent in the business of flag removal, left the Commissioners with additional doubt in their minds about the respondent's danger to the public.

5. The evidence of the respondent in the Hearing went no way in removing that doubt. On the contrary, the Commissioners came to the same conclusions as Mr Justice Girvan; namely that the respondent was more involved in flag removal than he admitted. It is, in the Commissioners' view, improbable beyond belief that the respondent did not know or at least suspect that they were embarking on a flag removal expedition.

6. Given the time of year, the week around Drumcree protests, and in an area of ongoing serious feuding between the LVF and the UVF, it is likely that the respondent knowingly entered a situation of high risk in which violence could follow. In the circumstances, it is not possible for the Commissioners to say that if released immediately, the respondent would not be a danger to the public.

7. Even if the Commissioners were to accept the respondent's version, there would still be a problem with danger to the public. Assuming for the sake of argument that the respondent did not enter a situation of risk knowingly, then he did so out of naiveté and lack of foresight and poor judgement. If the respondent is incapable of avoiding situations of obvious risk and potential violence, even then the Commissioners would not be able to say that if released immediately he would not be a danger to society."